Readers may recall that at the time of our 22 September article, concerns were being raised over the proposed Google Books settlement agreement. On 13 November 2009 an amended settlement agreement which has implications for New Zealand authors was filed with the United States District Court for consideration.
Scope of the settlement agreement
Previously covering foreign works, the scope of the new agreement has been limited to books published and registered with the United States Copyright Office, or published in United Kingdom, Canada or Australia before 5 January 2009. Rights holders of works that do not fall within this definition are not included in the settlement; including most New Zealand and European authors. Despite that, New Zealand rights holders whose works have been published in one or more of the included countries before 5 January 2009, as evidenced by information printed on or in a hard copy of the work, will be included in the settlement.
The reasons given for this limitation of scope were (a) that copyright laws of New Zealand and Europe are not as similar to the included countries as the laws of the included countries are to each other, and (b) the perceived similarity of publishing industry practices between the included countries. Some commentators have suggested that, although not referred to in the agreement, Google did not want to deal with pressure faced from China and European countries, especially given some European governments are undertaking their own digitization initiatives.
Implications for New Zealand
The implications for New Zealand rights holders will depend on whether their works fall within the scope of the agreement as limited.
- Non-included New Zealand rights holders
Non-included New Zealand rights holders will not be eligible to participate in the proposed settlement and will not be bound by its terms.
Full copies of these excluded works would not be available in the digital library unless the rights holder chooses to participate in Google’s Partner Program. Through the Partner Program, rights holders have the opportunity to reach a private agreement with Google which will likely be on substantially the same terms as the proposed settlement agreement. Therefore, rights holders retain the opportunity to receive the benefits of Google Books including the claimed additional revenue stream through sales and advertising.
If they do not choose to participate in the Partner Program they would retain the right to sue Google for its digitization of works already carried out without permission, and for displaying parts of their works. However, how valuable this right will be in practice remains to be seen.
- Included New Zealand rights holders
United Kingdom, Australia or Canada before 5 January 2009 will be bound by the amended settlement if it is approved by the Court and unless they opt out. For more information on rights in this situation, and for further information on the settlement generally, see the Supplemental Notice to the Settlement.
By limiting the scope of the agreement, we consider the parties have largely dealt with the concern raised by the Department of Justice in relation to the previous version regarding the application of the settlement to non-class members including foreign rights holders. However, concerns remain regarding Google holding a monopoly over sales and access to books which are included in the settlement. This criticism amongst others will be considered by the Court in a “fairness hearing” which will be scheduled in due course.
We will update readers as events unfold.